Live: No indication Patterson had 'innocent interest' in mushrooms, prosecutor says

Triple murderer Erin Patterson continues her bid to have her conviction overturned in the Court of Appeal, while the Office of Public Prosecutions launches its own appeal to have a harsher sentence imposed that removes any chance of parole.Follow our coverage live.Thu 20 Aug 2026 at 11:09amThu 20 Aug 2026 at 11:09amWe move on to ground five of the appealGround five is the defence's argument that prosecutor Nanette Rogers SC was unfair and oppressive during her cross-examination of Patterson.The Crown prosecutors today have jumped to the defence of their colleague.Nanette Rogers led the prosecution during Erin Patterson's murder trial (AAP: James Ross)Mr McWilliams says Ms Rogers was thorough and fair at all times."Plainly, we reject any suggestion that the prosecutor acted as anything other than a model minister of justice who was careful, thorough, fair and professional in all respects," he says.The defence had argued that Ms Rogers rehashed the case and was repetitive when questioning Patterson.Mr McWilliams says it may not always be apparent in the moment where the conflict in evidence lies, and it's necessary to put that evidence to Patterson to allow her to respond to it."At all times the form of questioning employed by the prosecutor wasn’t just permissible, but it was required, or at least strongly justified," he says.Thu 20 Aug 2026 at 11:01amThu 20 Aug 2026 at 11:01amHow is Erin Patterson reacting?In a rare sign of emotion, Patterson is shaking her head and can be seen saying "no" as prosecutor Jeremy McWilliams makes his legal arguments about the exclusion of the SD card.Thu 20 Aug 2026 at 11:01amThu 20 Aug 2026 at 11:01amProsecutors reject 'right-to-silence' argumentMr McWilliams rejects any claim that Erin Patterson's right to remain silent was violated."Her right to silence could only have been impeded if she was compelled to do something she otherwise would not have done," Mr McWilliams says.Justice Taylor asks about the suggestion that Patterson may not have testified at all on foraging if the SD card had not existed."That would have been an adventurous position to hold and I think defence counsel during the trial were far more careful than that," he says."One might infer that they had inferred that this would be evidence that was available to them in one way or another during the course of the trial."Thu 20 Aug 2026 at 10:56amThu 20 Aug 2026 at 10:56amProsecutors address claimed prejudiceJustice Taylor raises the point about Erin Patterson's right to silence, and the "prejudice" suggested by her lawyers because the photos had to be raised during her testimony rather than during the police witness's testimony.Mr McWilliams sounds almost a little confused when he answers the next point, saying he doesn't understand why it matters who introduces evidence to the jury."It is difficult to see what the unfair prejudice is from the evidence being adduced from one witness versus another," he says.Juries aren't ... terribly concerned with the formal mechanics of tender, they're concerned with the content of the evidence."Addressing the right to silence, he says it isn't a right to not be bound by the rules of evidence."[Patterson] had a forensic choice to make," he says."She clearly wanted to rely on having an innocent tendency to foraging."He says if she wanted to use the photos as defence, it only makes sense that it was introduced to the court through her.Thu 20 Aug 2026 at 10:50amThu 20 Aug 2026 at 10:50amWhat did the mushroom photos mean for the case?We're back to why the SD card photos of mushrooms were relevant to the trial.Mr McWilliams says the photos alone did not prove that Patterson regularly picked and ate wild mushrooms."The significant probative value ... were the accident theory and the culinary aspect," he says."The photos of themselves couldn't meet that next step."Mr McWilliams says the mushrooms in the photos were "fairly raggedy" and not seemingly fit for consumption.He reiterates that trial judge Christopher Beale was right to initially rule the photos out as irrelevant.Photos of mushrooms found on the SD card. (Supreme Court of Victoria)Justice Kidd asks again whether the photos should be considered as evidence of the fact in issue — that it was a culinary misadventure where Patterson accidentally cooked poisonous mushrooms.Mr McWilliams says Judge Beale was right in his decision, and notes that all the images were shown to the jury anyway.Thu 20 Aug 2026 at 10:43amThu 20 Aug 2026 at 10:43amThe SD photos and the fake cat claimThis may be confusing so stay with us, but Mr McWilliams says the SD card photos were initially evidence that the prosecution wanted included in its case.This is despite Patterson's appeal lawyers arguing the defence wanted them included.But Mr McWilliams says the prosecutors wanted some of the photos included for different reasons.While the defence wanted the photos shown to the jury to show her interest in foraging wild mushrooms, the prosecution wanted the photos to show Patterson's "enduring interest in poisons"."There was evidence on the Crown case that [Erin Patterson] had posted these photographs … on a Facebook poisons page and said, 'My cat has eaten one of these mushrooms and has become very sick,''' he says."The evidence was [Patterson] didn't own a cat."Mr McWilliams argues Patterson's post about the cat was actually her seeking information about poisonous mushrooms, and it's the prosecution's case that she used the photos on the SD card to research poisonous mushrooms.Thu 20 Aug 2026 at 10:38amThu 20 Aug 2026 at 10:38amProsecutor argues no evidence of foragingMr McWilliams revisits the testimony of Jenny Hay, a Facebook friend of Erin Patterson.Ms Hay told the trial that Patterson had never discussed foraging with her.Mr McWilliams also mentions the accounts of estranged husband Simon Patterson and their son, both of whom said they had never seen Patterson forage for wild mushrooms before."The only reference to the concept of an innocent interest in foraging wild mushrooms came from [Erin Patterson's defence lawyer's] opening address to the jury," Mr McWilliams says.He says her defence lawyers had to raise the idea that Patterson picked and ate wild mushrooms to the jury, knowing she would be cross-examined about it.Justice Lesley Taylor clarifies this point, and says Mr McWilliams is saying there was evidence that Patterson never foraged, rather than an absence of evidence that she did.Thu 20 Aug 2026 at 10:35amThu 20 Aug 2026 at 10:35amErin Patterson listens via video linkErin Patterson has not been brought to court from prison for her appeal hearing.Like yesterday, she is listening to the arguments via video link.ABC reporter Sacha Payne is in court and says Patterson is again wearing a blue jumper and has her hair tied back.Patterson is listening intently and blinking rapidly as she listens to prosecutor Jeremy McWilliams.Thu 20 Aug 2026 at 10:32amThu 20 Aug 2026 at 10:32amErin Patterson's police interview revisitedJustice Kidd says that if someone cooked wild mushrooms, they would likely also be picking them, as seen in the photos.Mr McWilliams says it's possible, but there was still no evidence of that final step — cooking them.We then move on to the history of the evidence, going back to Erin Patterson's police interview following the murders, and this exchange:Police: Is that something you've done in the past, foraging for mushrooms?Patterson: Never.Police: Anything like that?Erin: Never.Police: Do you preserve foods or anything like that?Erin: No.Police: Have you ever dehydrated food?Erin: No.He says this shows clearly there was no indication Patterson had ever shown an "innocent interest" in picking or eating wild mushrooms.Mr McWilliams says there remains no evidence throughout the prosecution's case that Patterson had ever foraged previously for wild mushrooms.Thu 20 Aug 2026 at 10:28amThu 20 Aug 2026 at 10:28amWe move to the SD card evidenceMr McWilliams moves onto the photos found on the SD card, which were tendered as "Exhibit LL" during the murder trial, and forms the basis of ground 3 of the defence team's appeal.He says trial judge Christopher Beale was entirely correct in his initial finding that the photos were irrelevant to the trial.He says none of the photos shows mushrooms being cooked."The key relevant hinge came from the culinary aspect of the umbrella term 'foraging'," he says."One can't accidentally include poisonous mushrooms in a dish if one doesn't have a tendency to cook wild mushrooms."He says Judge Beale was right that "to make that next leap would be pure speculation".Thu 20 Aug 2026 at 10:22amThu 20 Aug 2026 at 10:22amThe second day of hearings gets underwayCrown Prosecutor Jeremy McWilliams continues where he left off yesterday, discussing the event-based monitoring or EBM data that is transmitted by mobile phones.During Patterson's murder trial, prosecutors used mobile phone data to create a picture of Patterson's location and possible journeys to locations where death cap mushrooms were growing in Victoria.Patterson's appeal lawyers say EBM data is extremely complex and should not have been used, as simplifying such a technical piece of evidence for the jury would confuse the issue.Mr McWilliams rejects this."We say that event-based monitoring is not particularly significant of itself," Mr McWilliams says."It did not add a degree of unmanageable complexity to this case … it was readily understandable."Thu 20 Aug 2026 at 10:13amThu 20 Aug 2026 at 10:13amThe SD card, the changed ruling, and a claimed miscarriage of justiceOne of the key grounds that Erin Patterson's lawyers are arguing should lead to her murder conviction being overturned centres on an SD card found in Patterson's home during a police search.An examination of the SD card by authorities found several photos taken with a Samsung A7 phone, dated to April and May 2020, showing various photos of mushrooms and shots of Patterson's children.The photos found on the SD card in Erin Patterson's home. (Supplied: Supreme Court of Victoria)The digital timestamp of the photos said they were taken in April and May 2020. (Supplied: Supreme Court of Victoria)Colin Mandy SC, Patterson's defence lawyer at the time, argued that the jury needed to see these images, as they showed she was in the habit of foraging wild mushrooms, making the argument that an accidental poisoning incident was thus more likely. He argued:"Does it not make it more likely that someone would forage mushrooms, that is pick and eat them, if there is evidence that they have at least been picked and that there is an interest in those mushrooms at the time that they were picked …"Defence argued the photos showed a possible long-term interest in mushroom foraging. (Supplied: Supreme Court of Victoria)On the 29th of May last year, trial judge Christopher Beale ruled the photos inadmissible, saying they were irrelevant due to the amount of time between when they were taken and the fatal 2023 lunch.But Justice Beale reversed course a few days later, ruling on June 2 that the evidence was relevant, but only to support the possibility of a tendency — that Patterson had a habit of foraging for mushrooms.Patterson's appeal lawyers say that, as a result of the change in ruling, defence lawyers could not tender the photos as evidence through the police informant.They say her defence lawyers were "left with no choice" but to call Patterson herself to give evidence on the photos and defend herself."An accused's right to silence is fundamental. And a decision to waive that right must be given freely," her appeal lawyers said in their submission.They argue that Justice Beale reversing his decision on the SD card evidence was a substantial miscarriage of justice.The Court of Appeal judges suggested to Patterson's lawyers yesterday that it was likely that Erin Patterson was always going to give evidence and was not going to stay silent.But her appeal lawyers say it is not for them to say what happened during the murder trial itself, and that the removal of the choice itself was the issue.We'll hear what the Office of Public Prosecutions has to say in response today.Thu 20 Aug 2026 at 10:04amThu 20 Aug 2026 at 10:04amPatterson's team arrivesBarristers Richard Edney and Veronika Drago are representing Erin Patterson in court.They're assisted by Bill Doogue and Ophelia Hollway.The team arrived at the Supreme Court a short time ago.(ABC News)Thu 20 Aug 2026 at 9:54amThu 20 Aug 2026 at 9:54amWhat was argued yesterday?A big feature of the first day of the hearing was the blunder that saw the jury placed in the same hotel in Morwell as the police informant and some solicitors from the Office of Public Prosecutions during deliberations over the verdicts.The defence argued it was a "catastrophic" error as it could have led to direct or indirect contact between a jury member and a party to the trial.They said that contact could have been as little as a jury member looking through a window and seeing one of the other parties.But the OPP described that argument as "far-fetched" and without substance.You can read more about what happened yesterday here:Thu 20 Aug 2026 at 9:50amThu 20 Aug 2026 at 9:50amWelcome to day twoGood morning and thanks for joining the live blog.The second day of Erin Patterson's appeal hearing is about to start in the Court of Appeal in Melbourne.Judd Boaz and I will bring you all of today's arguments as the Office of Public Prosecutions responds to the defence teams grounds for appeal against Patterson's convictions.The OPP is also expected to launch its appeal against Patterson's minimum sentence, urging the court to take away her chance for parole.Court reporter Kristian Silva is again inside Courtroom 1 in the Supreme Court of Victoria, with the hearing scheduled to start at 10:15am.